INTERESTED IN BEING an expert witness? First of all, thank you. Complaints against hospitalists are going to increase as more hospitals expect patients to be admitted by us instead of by surgeons or medical subspecialists.
Our legal problems start when something goes wrong: a postoperative patient’s hemoglobin keeps dropping, the guy who had an ERCP on Monday complains of worsening abdominal pain or a gynecologic surgery patient has evidence of a blocked ureter. The doctor who performed the procedure and should be most familiar with its complications insists the hospitalist should have diagnosed it, fixed it entirely or explained the problem better. And sometimes hospitalists make mistakes even without other doctors being involved.
Who’s an expert? Attorneys need assurance that expert witnesses are credibly trained and experienced, so sharpen up that CV. You’ll need board certification and at least five years of full-time hospitalist work. Overseas medical degrees are not a problem as long as you did your residency training here.
Defending a fellow doctor from mistaken or outrageous accusations is truly rewarding.
Teaching medical students or residents will probably qualify you for more letters after your name. The American College of Physicians requires teaching experience and letters from already certified fellows to award that FACP; the Society for Hospital Medicine is our flagship organization, so you should not only be a member but start fulfilling the requirements to put FHM after your name. It may sound pompous, but it tells attorneys on both sides that you should be taken seriously.
A number of Web sites list expert witnesses on everything from oil refineries to abnormal psychology. The most-used is SEAK, which costs several hundred dollars a year depending on how big an ad you want. Other listings exist, but you may not get enough cases to justify those annual bills.
Agencies that connect experts with attorneys bill them (the lawyers) for all of the case or just the initial evaluation. MedQuest and TASA will contact you when an attorney needs a particular specialist. They will e-mail you with the attorney’s description of the case; you reply to assure them that you’re the right kind of specialist and have no conflict of interest.
Unless you have a secretary to do the bookkeeping and answer phone calls, just keep the paperwork at home. I use a cell phone for my “law” practice, and attorneys are pleasantly surprised that they can contact me directly.
You probably know doctors who already do this work. Plan on charging between 10% and 20% less than a subspecialist. That will get you through your first case or two, then you can adjust your rates up or down. Ask for a two-hour retainer fee to be paid before you start reviewing records.
Your first case reviews will be simple, letting attorneys evaluate how you think and write. However, once you start giving depositions, your opinions will be available online and cases will come more often.
Keep records of your income because you will be asked at depositions what percentage of your professional income comes from legal work. Expect opposing counsel to pounce on any discrepancy between what you said in one case and what you say in another.
The work itself
Before you’re sent hospital records, ask to have them organized. Think how you evaluate a transfer patient: doctors’ notes first, then imaging and labs, and eventually nursing notes. Wading through 800 pages of vital signs and orders helps nobody.
Evaluate the hospital stay, taking notes (I do mine in Word, preventing complaints about handwriting and making changes easier). Put page numbers of important documents along with your comments and, if possible, arrange your notes in chronological order.
Wait a day or so for the case to percolate through your brain, then tell the attorney you are ready to talk. Explain the events in layperson’s terms and ask for more information as needed. And write a report only if it’s requested. Many attorneys prefer to write one with all the necessary legal phrasing and have you edit it. That route is much less tedious.
The attorney will warn about keeping your thoughts and impressions away from the opposing attorney, as they could be used against your side. E-mails and faxes to “your” attorney are discoverable, meaning that they can and will be requested if the case gets to the stage of a deposition.
Remember that the plaintiff’s case needs not only a violation of the standard of care, but also proof that the violation caused damages. Your report and/or testimony can make or break that case.
Depositions and court testimony
Almost everyone prefers an out-of-court settlement. Depositions are usually requested by the opposing side to see what you think and how you look and sound. A document called a “duces tecum” (“Bring with thee”) will list what you must bring to the deposition or have at your side during the Zoom meeting. These will include the information reviewed, your CV, correspondence with attorneys (unless you have warned them in advance that they will have to get that from your attorney), your notes, and any articles you used to form your opinion.
Depositions range from pleasantly collegial to downright hostile. Attorneys who object to every answer as “non-responsive” or try to pick holes in your CV often do so because they know how weak their case is and want to rattle you. If you’ve answered a question, don’t let silence trick you into saying more than you need to.
Court testimony comes with a free trip plus usually a hotel night and a couple of meals with the attorney. Plaintiffs rarely win; remember that, if you think actual malpractice took place, at least that doctor now has a permanent place in the National Practitioner Data Bank.
Since the advent of tort reform, even the most ferocious plaintiff lawyers steer away from cases that experts won’t support. “Sorry, but there is no cause to blame the doctors” is usually greeted with a sigh and a thank you, because they don’t want to waste time and resources on a poor case.
Give special attention to defense cases to avoid being branded as the plaintiff’s friend. This is not easy, given that 100% of lawsuits begin with a plaintiff. But defending a fellow doctor from mistaken or outrageous accusations is truly rewarding.
This is a hugely interesting job, and figuring out how to approach a legal case is a new kind of challenge. Cases range from routine pneumonias to Wilson’s disease and arteriovenous malformations, so you are going to learn some new things. Enjoy yourself.
Stella Fitzgibbons, MD—who is also an FACP and FHM—has been a hospitalist since 2002 and was one of the first to begin reviewing legal cases. She practices at hospitals with NSR Physicians in Houston and at two primary care clinics for uninsured patients.
Published in the July/August 2021 issue of Today’s Hospitalist